Same-sex marriage receives Supreme Court's attention

On behalf of Michael Tracton of Law Office of Michael D. Tracton, P.C. posted in Same-Sex Couples & Divorce on Friday, May 8, 2015.

The U.S. Supreme Court recently heard oral arguments on same-sex marriage. In Texas, gay marriages are currently banned. All of the courts await a decision by the Supreme Court, expected in June.

At oral arguments, the first question was whether banning gay marriage is unconstitutional. One justice was concerned by the prospect of this decision being made by the Court rather than by the residents of each state. When an attorney representing states with gay marriage bans suggested that gay marriage would reduce the number of heterosexual marriages, most of the justices disagreed. The chief justice suggested that the issue may not be sexual orientation at all but rather sexual discrimination because a ban means that an individual is not allowed to marry a specific other individual because of their gender.

The second question was whether states that ban gay marriage can refuse to recognize marriages from other states allowing same-sex marriage. The lawyer for gay marriage supporters pointed out that states have traditionally recognized marriages of other states even when the marriage would not have been allowed in the recognizing state due to differences in legal requirements regarding age and parental consent. One justice found it odd that a divorce is recognized by every state, but a marriage is not similarly recognized.

Married and unmarried gay couples face complex questions such as whether a state will grant a divorce for a marriage that the state does not recognize. Adoption of children and including both partners' names on a child's birth certificate may not be allowed in states banning gay marriage. A same-sex couple may consult an attorney with who works in this field. The issues to be addressed will differ from state to state and will be affected by the Supreme Court decision. However, an attorney may be able to advise the couple regarding how to formalize decisions regarding adoption, child custody and divorce, no matter what the Supreme Court decides.

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